Societal Issues

Abortion Law in Queensland

In Queensland, abortion is a crime under the Queensland Criminal Code, although generally regarded as lawful due to case law if performed to prevent serious danger to the woman’s physical or mental health. Abortion is defined as unlawful in the Queensland Criminal Code (1899) under Sections 224, 225 and 226. Women can be criminally prosecuted for accessing abortion.

Section 224. Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.

Section 225. Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.

Section 226. Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

However, due to the R v Bayliss and Cullen court case in 1986 (see below) and the resulting judgement, an abortion is lawful in Queensland if carried out when there is serious danger to the woman’s physical and mental health from the continuation of the pregnancy. Section 282 of the Criminal Code attempts to define a lawful abortion and is used as a defence to unlawful abortion. The wording was amended in September 2009 to include medical abortion:

A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill a surgical operation on or medical treatment of: a) a person or unborn child for the patient’s benefit; or b) a person or unborn child to preserve the mother’s life; if performing the operation or providing the medical treatment is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.

R v Bayliss and Cullen

In May 1985 the Queensland police under the Bjelke-Petersen government raided the Greenslopes Fertility Control Clinic which had opened in 1976 and had undergone political pressure since that time. Police interrogated women and took away 20,000 confidential patient files to be copied and studied. As a result, Doctors Bayliss and Cullen were charged with procuring an illegal abortion contrary to Section 224 of the Criminal Code, and inflicting grievous bodily harm.

The presiding judge at that trial R v Bayliss and Cullen (1986) was Judge McGuire. At the conclusion of the trial, Doctors Bayliss and Cullen were found not guilty, and the basis for lawful abortion in Queensland currently rests on Judge McGuire’s decision. Until 2009, the law on abortion had not been tested as the prosecuting authorities have ‘turned a blind eye’, and the Queensland Parliament has not acted to address Judge Maguire’s concern around the uncertainty of the law. More information on the proceedings of the Bayliss and Cullen case are available at the Children by Choice website.

Cairns 2009-10

In April 2009, a 19-year-old Cairns woman was charged under section 225 in the Queensland Criminal Code, for procuring her own miscarriage. Her partner was charged under section 226 for assisting her.

The charges caused two Cairns doctors providing medication abortion to cease provision in June 2009, for fear their patients would be similarly targeted. Read their article in Crikey for a full description of their concerns. This sparked a similar reaction from doctors practicing in public hospitals around the state, causing the government to consider minor amendments to one section of the Criminal Code (see below).

The Cairns case was committed to trial in September 2009, and the trial began on 12 October 2010 in the Cairns District Court, with the couple facing potential jail terms of seven and three years respectively if convicted.

Police alleged the couple arranged for a relative to send a supply of the drug misoprostol, used in medical abortions, to Australia from the Ukraine. It is further alleged the woman used the drug successfully to terminate her pregnancy at 60 days, after the couple decided they were too young to parent. Police claim the couple made no inquiries about the availability of abortion in Cairns.

The charges were brought under the antiquated Criminal Code provisions relating to abortion – the first known time that a woman has been brought to trial in Queensland for choosing abortion.

The court heard a day and a half of evidence and witness statements from the prosecution, including three doctors from Cairns that the young woman consulted about the pregnancy, an obstetrics and gynaecology specialist from the University of Queensland, police officers present during the search of the couple’s home or subsequent interviews with them, and video footage of those interviews. The court heard that the couple had decided they weren’t ready to have a child, and that accounts of surgical abortion had persuaded them they did not want to choose that for themselves. They decided to have a medication abortion, using the same drugs the young man’s sister in the Ukraine had used for an abortion some years previously.

In the summing up, the prosecution urged the jury to remember they were in a ‘court of law, not a court of morals’, and that if they had views on the law of abortion they should ‘make them known at the ballot box’. The Crown prosecutor argued that the abortion in question was a ‘lifestyle choice’, and that because it had not been carried out to protect the woman’s life or health, that it was unlawful. He further argued that the central issue in the case was the lack of medical supervision of the use of the drugs, and that there was an inherent risk involved in taking the medication which the couple did nothing to mitigate. He argued that the law was in place to provide protection and that just because no apparent harm had come of the abortion, that did not make it right under the law.

Defense counsel summed up with two main arguments: despite the Crown’s emphasis on the couple’s lack of medical supervision, they had not been charged with using drugs without a prescription or anything similar – they had actually been charged with the abortion itself; and that as the Crown had based their case on their assertion that the drugs in question were ‘a noxious substance’, this was not borne out by the evidence presented in court and if the jury had any doubt as to this point, they had a duty to acquit the couple on all counts.

The judge reiterated in his summing up that if the jury had any doubts as to the noxious nature of the drugs in question, they must acquit both defendants (also stating that due to the wording of the charge, the drugs had to be considered noxious to the woman herself, and that the effect on a fetus may not be taken into account). He reminded the jury of the testimony of Professor Fisk, the obstetrics and gynaecology specialist, who had stated that the drugs were not harmful to the person taking them, and that in this particular case there was seemingly no ill-effect on the young woman.

The jury was out for less than an hour before returning with not guilty verdicts for both defendents.

Legislative amendments: changes to s282 of the Criminal Code

Arising from the concerns of doctors and others due to the prosecution of a Cairns couple for allegedly procuring an abortion, the Queensland Government introduced changes to section 282 of the Criminal Code in September 2009. Section 282 of Queensland’s Criminal Code does not relate specifically to abortion, but provides a defence for doctors charged with performing a procedure unlawfully. It is the defence on which doctors would rely, were they charged over providing abortion. The old text of s282 is as follows:

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.

The concern of providers was that ‘surgical operation’ was specified, and that medication abortion could not really be defined as a surgical operation. This grey area existed for many years and was repeatedly raised as a concern by doctors.

To resolve this issue, the Government committed to reforming this section of the Code to allow for the provision of medication – which they argued was also applicable to treatments such as chemotherapy. The revised section now reads:

A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill a surgical operation on or medical treatment of: a) a person or unborn child for the patient’s benefit; or b) a person or unborn child to preserve the mother’s life; if performing the operation or providing the medical treatment is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.

There is also an added clause stating that if a person has been lawfully supplied (or believes they have been lawfully supplied) with a substance then it is legal for them to use it, thereby offering a small amount of protection to women seeking medical abortion.

The sections pertaining specifically to abortion remain in the Code, and were not examined or altered in any way. They set out penalties for doctors, women and support people.

The parliamentary debate over the Government’s amendments to s282 of the Criminal Code was brief – only nine MPs spoke on the bill. The amendments were voted on along party lines, as the bill was not specifically abortion-related and therefore did not require a conscience vote. The Opposition pledged their support to the changes, with members stating several times that their support was based on the fact this would not increase the availability of abortion in Queensland, but would serve only to clarify current practice. The changes were passed on 3rd September, with only Independent Gladstone MP Liz Cunningham voting against.

What they said:

“During the debate today honourable members on both sides of this parliament should not cloud this issue. What we are dealing with is something that is extremely narrow in its application…This is a medical debate. A pregnancy termination remains a criminal offence unless the life of the mother is jeopardised. The fundamental principle is not changed, impinged or affected in any way whatsoever by this bill before the parliament today.” – Laurence Springborg, Deputy Opposition Leader

“We cannot stand by and allow existing out-of-date laws to continue for any length of time that have the potential of making, unintentionally, criminals of both health professionals and the public. These people deserve to be protected and we need to provide certainty as far as is possible for both the highly trained health professionals and the public caught up in the current uncertainty that comes from old and/or out-of-date laws.” – Grace Grace, ALP, Brisbane Central

“There are many who have concerns with the current level of abortions in this state and have the view that this highlights a social tragedy.” – David Gibson, LNP, Gympie

“I think it is important for me to put on the record that my strong view from what I know of many members of this parliament on both sides, and views that they have publicly expressed, is that a bill brought before this House to substantially change the existing law on termination of pregnancy would not succeed. I do not see any point in bringing legislation into this parliament when you know it has no real prospect of success.” – Premier Anna Bligh

“We now lose 14,000 babies a year. If we apply the interpretation of case law, they die to preserve the woman from serious danger to her life or her physical or mental health. I am sorry, but I find it very difficult to accept personally that all of these babies die in that specific circumstance.” – Liz Cunningham, Independent, Gladstone

“It has been said that abortion is a matter between a woman, her partner and the doctor. With respect, there is also an unborn person.” – Michael Choi, ALP, Capalaba

The letter of the law as it stands states that the only grounds for a lawful termination in Queensland is to save the life of the woman or to prevent a serious threat to her physical or mental health. Rape, incest, or a fetal anomaly – even one so serious as to be incompatible with life, such as anencephaly – are not sufficient grounds for a legal abortion in Queensland. If a woman is told at 13 weeks into her pregnancy that her baby will not survive birth, such as one woman who contacted Children by Choice late last year was after a routine ultrasound showed her fetus was developing without a brain, she cannot lawfully choose to terminate that pregnancy before it dies in her womb. Ironically, after she miscarries or delivers a stillborn, treatment is available at any hospital.

With this law now being interpreted much more narrowly than before the 282 reforms, the only way that women presenting for abortion on any of the above grounds – rape, incest, fetal anomaly – can legally access a termination is to prove to a doctor that the effect of this on her physical or mental health is so extreme that she needs an abortion. In effect, women who are perfectly capable of making a rational decision are not recognised as decision makers worthy of respect, and have to feign hysteria or lie about their level of mental stress in order to access abortion.

Abortion laws around Australia

Queensland & New South Wales: Abortion a crime for women and doctors. Legal when doctor believes a woman’s physical and/or mental health is in serious danger. In NSW social, economic and medical factors maybe taken into account.

Australian Capital Territory: Legal, must be provided by medical doctor.

South Australia: Legal if two doctors agree that a woman’s physical and/or mental health endangered by pregnancy, or for serious foetal abnormality. Unlawful abortion a crime.

Tasmania: Legal to 16 weeks on request, and after that point with the approval of two doctors.

Western Australia: Legal up to 20 weeks, some restrictions particularly for under 16s. Very restricted after 20 weeks.

Northern Territory: Legal to 14 weeks if 2 doctors agree that woman’s physical and/or mental health endangered by pregnancy, or for serious foetal abnormality. Up to 23 weeks in an emergency.

The ACT has the most progressive law in the country. All statutory and common law offences of abortion were repealed in 2000, and the procedure is now regulated in the Health Act. There is no evidence that any increase in demand for abortion at any stage of gestation has occurred.

In contrast, law reform in WA, in 1998, had less positive outcomes. The law is unnecessarily confusing prior to 20 weeks gestation, and after 20 weeks gestation access for termination is complex, requiring each woman’s case to be evaluated by a faceless committee. Documented problems with the regime include women feeling pressured to make a quick rather than considered decision after a negative fetal diagnosis when the pregnancy is less than 20 weeks, and of women failing to bond with babies they were compelled to deliver after being denied abortion by the committee. Read the Department of Health and Department of Justice’s Review of the Amendments (PDF 369 KB) .

Availability of abortion in Queensland

Legality of abortion is a continuing issue for both providers and the women seeking to access terminations each year. It is raised again and again as a major obstacle in delivering adequate and accessible services, and impacts on many other aspects of service provision.

It is estimated that only around 1% of all terminations performed in Queensland each year are done in public hospitals. The remaining 99% are performed by private clinics and day surgeries. These are few in number – only around ten such clinics exist in Queensland – and although they offer services of a high standard and are accredited by the state health department, have a high out-of-pocket cost attached for women.

Almost 90 per cent of the local government areas in Queensland have no abortion provider. The state only has around 10 clinics licensed to perform abortions, and seven of those are in the south-east corner. If women are north of Gympie and west of the Great Dividing Range, they face long travel distances to reach an abortion provider.

Local hospitals don’t provide an alternative. Even women pregnant after sexual assault or who have been diagnosed with serious health conditions can be turned away from public hospitals.

The almost complete lack of public services means even women in extreme circumstances need to negotiate the private system. The small number of these services is the first hurdle, as women in some areas face enormous distances to travel; the average for Children by Choice regional or remote clients is over 1,700 kilometres return to their closest clinic. Not only is this costly, but there are the challenges of how to explain an absence of three days, arrange time off work, pay for petrol or flights, and find somebody to care for existing children or family members.

Once women get to a clinic, they face high out-of-pocket costs. In Brisbane, the minimum cost of a surgical termination up to 11 weeks of pregnancy is fast approaching $500. Medication abortion is more expensive still. The price rises to over $800 in some regional centres, and increases in cost each week after 11 weeks of pregnancy. Most clinics only provide to 15 weeks, so for anything past this point a visit to Brisbane or the Gold Coast is necessary and the cost can rise into the thousands; all this for a procedure that women in many states are able to access through a public hospital, particularly since the majority of abortions at this gestation are sought for exacerbating and complex reasons including fetal anomaly and violence.

With over 90 per cent of all abortions being performed in the first trimester, most Queensland women are looking at around $500-$850 for a termination. To some this may not sound like a lot of money to find at short notice, but consider that the maximum payment a single can receive under Newstart is less than $500 a fortnight and you begin to see things differently.

Until 2012, no statewide guidelines existed on the public provision of abortion in Queensland. These have now been released and are in varying levels of implementation across the state’s Health and Hospital Service districts. Women’s health groups and individual practitioners are continuing to work with hospitals to help them fully implement the guidelines, which state explicitly that women requesting abortion at a public hospital must be assessed for eligibility by a practitioner who does not hold a conscientious objection to abortion. The guidelines also explain the legal criteria for abortion provision and guide practitioners on the types of circumstances which may be taken into account in assessment. The guidelines are available to read online.

Succession planning is also an area of increasing concern in Queensland. There are several overlapping causes of this, including the unclear legal status of abortion, surgical as well as medical, throughout Queensland. Issues with legality as well as the continued stigmatisation of abortion are affecting the willingness of GPs and clinics to get involved in the area.

Surgical abortion procedures

Surgical abortion uses gentle suction to remove the pregnancy from the uterus. It is generally performed under some form of anaesthetic and is a safe, simple and modern procedure with a low risk of complication. The World Health Organisation describes abortion – by either surgical or medication means – as ‘one of the safest medical procedures’.

The Royal Australian and New Zealand College of Obstetricians and Gynaecologist has prepared a resource document for health professionals, summarising current medical evidence and reference material about methods of termination of pregnancy prior to 20 weeks gestation. You can download it from the RANZCOG website.

Medication abortion procedures

Medication abortion is a non-surgical procedure and an option for women with pregnancies that are under nine weeks gestation. It allows women to terminate an unplanned and unwanted pregnancy at an earlier gestational stage than surgical abortion and requires no anaesthesia.

The preferred method for medication abortion is the combined use of RU486 (mifepristone) and a prostaglandin like misoprostol. Until 2006 there was a ministerial veto in place regarding the importation or distribution of RU486 in Australia. During the campaign in federal parliament to remove this veto, Children by Choice and Reproductive Choice Australia provided information to MPs on the safety and efficacy of RU486. More information on the campaign is available on the Children by Choice website.

The Therapeutic Goods Administration (TGA) announced in 2013 that RU486 has been approved for distribution in Australia for use in early medical abortion.

The TGA announcement means specialist obstetricians and gynaecologists, as well as GPs who undertake training from the license holder Marie Stopes International Australia, are able to prescribe mifepristone to women for use in termination of pregnancy up to seven weeks gestation. It is hoped that this will result in expanded access to the drug, particularly in remote, rural and regional areas. Of course, doctors prescribing mifepristone under these conditions still need to abide by the Queensland legal requirements relating to lawful abortion provision. GPs also need to find a pharmacist willing to stock mifepristone, and women seeking to access a medication abortion through their GP will in some cases need to organise their own ultrasound. On top of the costs of the medication itself, women must also pay for GP consultations, ultrasounds and bloodwork. Some insurers also required higher levels of procedural insurance for GPs, although it seems as though this is being ironed out.

The Royal Australian and New Zealand College of Obstetricians and Gynaecologists states that ‘there is a substantial body of literature establishing the safety and efficacy’ of the RU486 plus prostaglandin regime. The World Health Organisation describes abortion – by either surgery or medication – as ‘one of the safest medical procedures’. In 2005, it placed RU486 on its list of ‘essential medicines’.

Conscientious objection

The right of medical practitioners to conscientiously object to providing patients with care to which they have objections must be balanced against their professional obligation to provide timely, high-quality care.

The Australian Medical Association (AMA) provides advice to its members on managing this conflict. In particular, they advise doctors that they must:

Respect [the] patient’s right to choose their doctor freely, to accept or reject advice and to make their own decisions about treatment or procedures

When a personal moral judgement or religious belief alone prevents [them] from recommending some form of therapy, [they must] inform [the] patient so that they may seek care elsewhere

Discontinue [a] relationship with a patient only if an alternative health care provider is available and the situation is not an emergency one. [They must] inform patient[s] so that they may seek care elsewhere

Following the 2008 Victorian law reform, many anti-choice lobby groups argued that it ‘forced’ doctors and nurses to be involved in abortion provision even if they had a conscientious objection. This is untrue. What medical professionals are obligated to do if they have a conscientious objection to abortion, is make that objection known to their patient and then refer that patient to a doctor they know does not hold the same objection – in line with the Australian Medical Association’s code of ethics (above).

According to the law in Victoria, doctors who have a conscientious objection are not obliged in any way to participate in the provision of abortion services unless a woman’s life is in immediate danger, in which case the conscientious objection provision does not apply.

“They [the anti-choice lobby] declaim with high dugeon the “extraordinary attempt by pro-abortion legislators” to threaten the livelihoods health practitioners who “are unwilling to … perform an abortion,” but never mention that the only compulsion to provide abortion in the Victorian legislation is in an emergency where it is necessary to preserve a woman’s life.

The conscience clause in Victoria’s new abortion law requires just two things from doctors…

The first is that they don’t exercise this freedom at the cost of a woman’s life. The second is that they ensure their refusal to provide timely medical care doesn’t translate into her inability to get timely medical care by providing an effective referral.”

Australian service provision

Abortions are currently carried out in some public hospitals and private practices across Australia. The cost of abortions can vary depending on which service is utilised and the type of abortion procedure. Varying state law also impacts the provision of services, another reason the cost and availability of abortion differs from state to state.

Risks of abortion

In Australia, where abortions are performed by highly qualified health care professionals in very sanitary conditions, a pregnancy termination is one of the safest medical procedures, and complications are rare. The anti-choice lobby use the supposed ‘risks’ of abortion to scare women out of having a termination – the three most often used in misinformation campaigns are that an abortion will affect a woman’s future fertility, that it causes breast cancer, and that there are long-lasting psychological impacts of abortion.

Infertility

The Royal Australian and New Zealand College of Obstetricians and Gynaecologists, or RANZCOG, states that serious complications after abortions are rare, and that mortality and serious morbidity occur less commonly with abortions than with pregnancies carried to term. While minor surgery or the administration of medication does carry some risks, both surgical and medical methods of abortion should not have any adverse effect on future fertility.

The Royal College of Obstetricians and Gynaecologists in the UK identifies that there are no proven associations between induced abortion and subsequent ectopic pregnancy, placenta praevia or infertility, a view supported by RANZCOG, who state that women who have an uncomplicated termination are not at an increased risk of being infertile in the future.

Breast cancer

Around the world, reproductive health and anti-cancer organisations have rejected any association between abortion and an increased risk of breast cancer. This rejection is based on reliable scientific investigation, documented in reputable medical publications, and has been endorsed by the World Health Organisation.

One study published in the Lancet medical journal in 2004 was an analysis of 53 studies, involving 83,000 women with breast cancer from 16 countries, found that there was no evidence of a difference in breast cancer rates between women who had had an abortion and those who had not.

Neither the United States Cancer Council or its Australian counterpart recognise abortion as a risk factor for cancer.

Emotional trauma

Every woman experiences the termination of a pregnancy differently, but there is no evidence to suggest that it can cause permanent emotional strain. The American Psychological Association’s Taskforce on Mental Health and Abortion reviewed 20 years of research and studies into the psychological effects of abortion and released its final report in 2008. It found no difference in the psychological effect of terminating an unplanned pregnancy and carrying that pregnancy to term. Reviews of studies into the issue have found a number of consistent trends:

The legal and voluntary termination of a pregnancy rarely causes immediate or long-lasting negative psychological consequences in healthy women;

Greater partner or parental support improves the psychological outcomes for the woman and that having an abortion results in few negative outcomes to the relationship;

Some studies have reported positive outcomes, such as feelings of relief, for women.

In 2005, The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) reviewed the evidence on the psychological impact of abortion and concluded that ‘Psychological studies suggest that there is mainly improvement in psychological wellbeing in the short term after termination of pregnancy [and that] there are rarely immediate or lasting negative consequences’. Read the RANZCOG report Termination of Pregnancy: a resource for health professionals (PDF 193 KB).

Counselling

Most women talk to friends, family, their partner and/or doctor before undertaking a termination. In a recent survey by Marie Stopes International, three out of four women said they did not want professional counselling before having a termination.

What 81% of women who did want counselling said they wanted was balanced information about, and referrals for, all three options: pregnancy, abortion, adoption and parenting. Pro-life counselling does not refer for abortion, though deceptive advertising practices may make it difficult for women to know that the agency they have called is pro-life and will not help her to find an abortion provider, even if she requests this assistance.

Post- abortion stress is not a recognised psychological condition and, to date, there is no evidence that induced abortion poses a higher risk to women’s mental health when compared to other resolutions to unwanted pregnancy: adoption and the parenting of an unwanted child (see Risks of abortion above). Should this change, Pro Choice QLD would support the updating of the information disclosed to women prior to their consenting to an abortion.

Counselling should never be mandatory. Pregnancy counselling, like other forms of counselling, is ineffective unless the patient wants the service. Compelling a woman or couple who are clear about her/their decision to undergo counselling undermines her/their dignity and is a waste of tax-payer resources.

Public opinion

Opinion polls consistently show a large majority of Australians support abortion decriminalisation.

In a survey published in the July 2010 issue of the Medical Journal of Australia, almost 90% of Australians were found to be in favour of legal abortion in the first trimester of pregnancy. The data also showed that a significant majority support legal abortion being available to women into the second trimester.

A 2009 review of Australian attitudes to abortion, undertaken by Swinburne University researcher Dr Katharine Betts, found that ‘more than half the electorate in Australia and in Queensland support freedom of choice, and a further third support the availability of abortion in special circumstances… Such opposition as there is is concentrated among a few religious groups and among people aged 75 and over. As far as attitudes are concerned, Queensland is no different from the rest of Australia’. The full review is available online.

A survey of Queensland voters’ views on abortion was carried out by Auspoll in May 2009. It found that 79% of the population wanted the law changed so abortion is no longer a crime, and that 85% of the population did not believe that the Government should be involved in the abortion decision.

The Victorian Law Reform Commission considered public opinion in its inquiry into the decriminalisation of abortion in that state in 2008. Their analysis of attitudes to abortion was that given some limitations in data, the available evidence suggests that a majority of Australians support a woman’s right to choose. Their final report is available online.

Religion and choice

While nearly all pro-life advocates are religious, the majority of religious people support choice. For instance, the 2003 Australian Survey of Social Attitudes found that 77% of Australians with religious views support a woman’s right to choose. Further information can be found in the Australian Australian Reproductive Health Alliance’s report, What do Australians Think About Abortion (PDF 291 KB).

In 2008, The Melbourne Anglican Church put a submission to the Victorian Law Reform Commission supporting the ‘provision of safe and affordable abortions with appropriate safeguards for women who, for whatever reasons, request them.’Read the submission from the Anglican Diocese of Melbourne.

Abortion rates

There is no national data collection of abortion statistics in Australia, and it is difficult to estimate accurately the number of abortions performed. Using statistics acquired from Medicare benefits is not an accurate estimation as it is not possible to differentiate between induced abortion and miscarriage. Additionally, abortion drug mifepristone is not covered by Medicare (although it does attract a subsidy through the PBS), so is necessarily excluded from any Medicare statistics.

The Australian Institute of Health and Welfare estimated the number of induced abortions to be slightly more than 84,000 in 2003. Some details of abortion rates can be found on The Australian Reproductive Health Alliance fact sheet, Abortion in Australia (PDF 60KB). Further discussion on the issue of abortion statistics can be found at The Parliamentary Library paper, How many abortions are there in Australia?

The finding that there is no predictive relationship between the legal framework surrounding abortion and abortion rates was reiterated in a 2007 article in The Lancet, by Sedgh, Henshaw, Singh, Ahman and Shah – ‘unrestrictive abortions laws do not predict a high incidence of abortion and by the same token, highly restrictive abortion laws are not associated with low abortion incidence’. View the full article, Induced abortion: estimated rates and trends worldwide (PDF 149 KB).

In March 2008, the Council of Europe invited all member states to decriminalise abortion on the grounds that ‘A ban on abortions does not result in fewer abortions, but mainly leads to clandestine abortions, which are more traumatic and more dangerous’. See their full report, Access to safe and legal abortion in Europe (PDF 123 KB).

The Special Rapporteur considers the impact of criminal and other legal restrictions on abortion; conduct during pregnancy; contraception and family planning; and the provision of sexual and reproductive education and information. Some criminal and other legal restrictions in each of those areas, which are often discriminatory in nature, violate the right to health by restricting access to quality goods, services and information. They infringe human dignity by restricting the freedoms to which individuals are entitled under the right to health, particularly in respect of decision-making and bodily integrity. Moreover, the application of such laws as a means to achieving certain public health outcomes is often ineffective and disproportionate.

Abortion as contraception

A range of contraception options are available for both men and women, including the pill and condoms. Contraceptive choice depends on personal circumstances – age, way of life, whether or not you have children, health and the need to avoid pregnancy and sexually transmitted infections (STIs).

There is no evidence that women use abortion as a method of contraception. Recent studies have found that over two-thirds of women who experience unplanned pregnancy were using contraception when they conceived, showing that women are not relying on abortion alone to prevent pregnancy. One study by researchers from Flinders University and published in 2008 in the Australian and New Zealand Journal of Public Health, found that 70% of women seeking abortion in South Australia over the past ten years were doing so because their contraception had failed.

Even when used correctly and consistently, all contraceptive methods can fail and none are 100% effective. One study found that almost one in four (23.8%) of 10,173 Australian men who had used condoms in the previous year reported having experienced at least one condom breakage.

Sexual violence and coercion also remain realities for many women, and no method of contraception is foolproof. In 2004, the World Health Organisation estimated that even if contraception was used correctly all the time, there would still be close to 6 million accidental pregnancies every year. This means that unplanned pregnancy will always be a reality for women and couples, and safe and legal abortion a necessary service. Read the WHO report, Unsafe Abortion.

Abortion at a later gestation

There is no agreed medical definition of a ‘late-term’ abortion. Those undertaken after 20 weeks gestation are generally defined as 2nd or 3rd trimester terminations.

The number of abortions performed at 20 weeks gestation or later make up a very small proportion of all abortions. The Australian Institute of Health and Welfare figures from 2005 found that 94.6% of all abortions are performed before the 13th week of pregnancy, or in the first trimester. A further 4.7% were performed between the 13th and 20th week, leaving only 0.7% of all abortions which are performed after 20 weeks gestation.

Women may be present later for abortion for a number of reasons. These include diagnosis of fetal abnormality in a wanted pregnancy, difficulty in accessing abortion, failure to recognise the pregnancy earlier (often due to extreme immaturity or maturity, mental disability, or incompetent medical care) or catastrophic changes in personal circumstances (including death or serious illness of partner or child, loss of a job, partner violence or desertion). For more information read Women’s Health Victoria’s Termination of Pregnancy Post 24 Weeks background paper (PDF 65KB) or Dr Leslie Cannold’s piece for the Age on why women seek later terminations.

The decision to abort in any of these circumstances is a difficult one, and often made more complex by the lack of available termination services for post-20 week abortion. Gestational limits for legal abortion have had extremely negative outcomes for women in other jurisdictions, including in WA where a 20-week cut off has resulted in women having to make a very fast decision on whether to abort after receiving a diagnosis of fetal abnormality later in pregnancy. Currently, in Western Australia, women requesting termination past 20 weeks are referred to a committee, which either grants their request, or denies them access to the procedure. The results of this regimen, according to an official report on the workings of the law, have been:

women and couples feeling pressured to make a quick rather than considered decision when a negative fetal diagnosis occurred just prior to 20 weeks lest they lose control after 20 weeks of the choice

women and couples feeling pressured to terminate even in the face of medical advice to ‘wait and see’ for fear of being denied a termination by the panel after 20 weeks if the fetal diagnosis remained poor

women and couples feeling a diminished sense of personal control in making important life decisions

women/couples who are denied a termination feeling unique issues of guilt and grief associated with being compelled to continue a pregnancy but having conflicted feelings about using counselling services to resolve such issues at the institution that denied them the abortion

women/couples and medical professionals feeling concerned about the objectivity of the panel decision and of having their choice judged by its unknown members

experts caring for women/couples expressing concern about the risk of self-harm and failure to bond with the baby faced by women denied an abortion.